Establishment Clause, Elk Grove Unified School District v. Newdow

[A18]

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)

Petitioner school district requires each elementary school class to recite daily the Pledge of Allegiance. Respondent Newdow's daughter participates in this exercise. Newdow, an atheist, filed suit alleging that, because the Pledge contains the words "under God," it constitutes religious indoctrination of his child in violation of the Establishment and Free Exercise Clauses. ... The Magistrate Judge concluded that the Pledge is constitutional, and the District Court agreed and dismissed the complaint. The Ninth Circuit reversed, holding that ... the school district's policy violates the Establishment Clause. ...

Ignore the standing issue.

[Emsworth]

The pledge itself is unconstitutional, because it constitutes a federal affirmation of the existence of God. The very purpose of the establishment clause was to keep religion completely separate from the federal government, and entirely in the hands of the states. A federal affirmation of the existence of God would violate this requirement.

[A18]

First of all, schools are state entities, not federal. What federal action is involved here?

[Emsworth]

First of all, schools are state entities, not federal. What federal action is involved here?

That is why I noted that the pledge itself is unconstitutional. Recital of the pledge in schools seems to be perfectly permissible.

[A18]

By the pledge itself, do you mean the 'under God' portion? I don't think history supports the conclusion, either way.

[True Federalist (진정한 연방 주의자)]

I take it then, Emsworth, that you disagree with Everson v. Board of Education, 330 U.S. 1 (1947) in its 9-0 assertion (made by all of the opinions in the case, including the dissenting ones) that the Establishment Clause does pertain to the States.  I can't support a conclusion that it's OK for the States and not for the Federal government to have a brief "under God" in the pledge, not without Everson being overturned first that is.  This certainly is an edge case, but I agree that just barely it violates the Establishment Clause.  Even if it didn't, the coerced speech aspect is enough for me to find that it violates the Freedom of Speech clause as well.

[Emsworth]

By the pledge itself, do you mean the 'under God' portion?

Yes.

As far as the establishment clause is concerned, there is no difference between declaring that God exists, and declaring that Jesus Christ is the Son of God. Both are religious affirmations, which Congress is forbidden from making.

I can't support a conclusion that it's OK for the States and not for the Federal government to have a brief "under God" in the pledge...

Why not? The establishment clause, like the Tenth Amendment, is a federalism provision, and is therefore incapable of being incorporated.

[True Federalist (진정한 연방 주의자)]

I can't support a conclusion that it's OK for the States and not for the Federal government to have a brief "under God" in the pledge...

Why not? The establishment clause, like the Tenth Amendment, is a federalism provision, and is therefore incapable of being incorporated.

Whatever else it is, the establishment clause is not a federalism provision.  It has zero to do with the interaction between the State and Federal governments.  The only basis I can see for your point of view is that the Ist differs from the IInd through VIIIth because it begins "Congress shall make no law", but for to that be a significant distinction, then the rest of the first eight amendments must have applied to the States even before the passage of the XIVth Amendment.  That certainly is contrary to pre XIVth case law.

[A18]

That's not what he's saying. The Establishment Clause is a federalism provision because it was designed to protect state establishments against federal interference.

[True Federalist (진정한 연방 주의자)]

I don't buy that argument.  It acts broadly to prevent the Federal government from forcing people to pay for a religion that they don't agree with.  That it prevents a potential conflict between a Federal and any State established church is a side effect, not the intention of the clause.  If that had been the primary intention, then the amendment could have been crafted to allow an established church to exist in the Federal District and/or the territories.